Second Preference EB-2
Advanced Degree Professionals
One of the common ways educated foreign workers to get employment-based green cards in the U.S. is by utilizing a category known as “EB-2.” This is the second (out of five) “preference” categories of people who are eligible for green cards based on their work.
Category EB-2 is split into two subcategories; Advanced Degree Professionals & Persons of Exceptional Ability. Advanced Degree Professionals are the members of the professions who have earned an advanced academic degree. The person must also either have a job offer from a U.S. employer or qualify for a “national interest waiver.” This category is sometimes called EB-2(A).
Before the foreign national can apply for an EB-2(A) visa and green card, in most cases, the U.S. employer offering the job must seek labor certification. (The exception is for those persons who qualify for a “national interest waiver” of the labor certification requirement—see the discussion here.)
Labor certification is confirmation from the U.S. Department of Labor (DOL) that the employer has gone through an adequate recruiting process and rightly determined that no qualified American workers are willing and available to take the job—thus necessitating that the employer turns to foreign sources of labor.
An essential advantage of obtaining a green card under category EB-2 is that it often moves faster than EB-3 visa categories. It is a simple matter of supply and demand: Fewer people can meet the qualifications for this category than others. Given that the number of employment-based visas approved per year is limited by U.S. laws applying for a category with lower demand can significantly reduce the wait time. A foreign national who qualifies for an EB-2 visa could potentially obtain a green card years sooner than an applicant who qualified for only an EB-3 visa, for example.
Meeting the Academic Qualifications for an EB-2 Advanced Degree Visa
To meet the necessary legal requirements for an EB-2(A) visa, the foreign national must have earned an advanced academic degree, such as a Master’s, Ph.D., Juris Doctor (J.D., or law degree), or an M.D. (medicine).
In one situation, however, the foreign national does not need a degree beyond the baccalaureate. U.S. Citizenship and Immigration Services (USCIS)’s definition of “advanced degree” includes a B.A. or B.S. “followed by at least five years of progressive experience in the specialty,” which it considers to be the equivalent to a master’s degree. The “progressive” aspect of the experience means that the level of responsibility the worker exerted, the complexity of the tasks taken on, and the knowledge gained in that position must have increased progressively over the five years.
Special Challenges When the Employer Seeks Labor Certification
Employers planning to sponsor immigrants in category EB-2 must take particular care when listing the minimum requirements. The employer must clearly state that the minimum requirements are a master’s degree or a bachelor’s degree plus five years’ progressive post-bachelor’s degree experience. If the employer says, for example, that the minimum requirement is either a master’s degree or a bachelor’s degree plus a mere two years’ experience, that will not be enough to gain approval. Moreover, making this statement alone will not be enough: The employer will need to prove that it requires such a progressive experience.
Timing of Gaining the Needed Work Experience
If the foreign national relies on a B.A. plus five years’ experience, there are some catches to be aware of. The worker must have met the minimum requirements before, not after, the employer files the labor certification application, and (in most cases) before having even been employed by the sponsoring company. The DOL does not ordinarily allow a foreign national to count experience gained with the sponsoring employer.
Also critical is that if the foreign national is claiming to have a bachelor’s degree plus five years’ progressive experience, the five years’ experience was gained after obtaining the bachelor’s degree.
Persons of Exceptional Ability
This EB-2(B) category is for foreign nationals of exceptional ability in the sciences, arts, or business. The person must either have a job offer from a U.S. employer or qualify for a national interest waiver (NIV). Typical cases of who qualify for an EB-2(B) visa might include economists, lawyers, doctors, veterinarians, physicists, market research analysts, geographers, mental health workers, and marriage and family therapists.
The exceptional ability subcategory is easily confused with the employment first preference priority worker subcategory for persons of extraordinary ability, but the requirements are slightly less narrow. (However, people with jobs in education and athletics are left out of this second preference subcategory.)
The main benefit of the EB-2(B) subcategory is that the foreign worker need not have received international acclaim in the field of specialty. Proven sustained national acclaim will meet the required standard. However, the worker must still be considered significantly more accomplished than the average person in the same profession.